Judge Sullivan ripped the judicial mask off, and what's behind it is ugly
General Michael Flynn filed a petition for writ of mandate requesting that the Court of Appeals for the D.C. Circuit order Judge Emmet Sullivan to dismiss Flynn's case, in the face of Sullivan's refusal to do so. On Monday, as the appellate court requested, both Judge Sullivan and the Department of Justice filed briefs defending their positions. Sullivan's was a disaster.
The fact that Judge Sullivan even had to file a brief is unusual. In the ordinary situation, while a writ of mandate requests an order that a judge do or undo something, the "real party in interest" is the party who sides with the judge's original position. That party writes the brief.
In this case, however, both parties are on the same side, and the judge stands opposite them. The appellate court, therefore, ordered the judge to file a brief defending his position, and it expressly added that he must do so in light of United States v. Fokker Servs. B.V. (D.C. Cir. 2016) 818 F.3d 733, the pre-eminent D.C. Circuit Court of Appeals case regarding motions to dismiss.
Sullivan apparently felt he was not up to the task of explaining his own legal analysis, so he hired one of Washington's fixers: Beth Wilkinson. He should have saved his money. Wilkinson's brief (which you can read here) is a joke. Additionally, Wilkinson has abandoned any pretense that Sullivan is impartial. This is an attack brief against Flynn.
The brief's main failing is that it pretends that, because the Fokker decision gives the trial court some discretion (as even the Department of Justice conceded), that means that under the "unique facts of this case," Sullivan has full discretion to review the request for dismissal.
Wilkinson and her team are being dishonest. On the matter at issue here, Fokker is unambiguous:
[T]he statute's "approval of the court" requirement did not empower the district court to disapprove the DPA based on the court's view that the prosecution had been too lenient. ...
[D]ecisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion. (Fokker, at pp. 741, 742.)
The reason that the prosecution must file a motion is so that the court can protect the defendant:
Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one — "to protect a defendant against prosecutorial harassment ... when the [g]overnment moves to dismiss an indictment over the defendant's objection." (Fokker, at p. 742.)
Everything else in Sullivan's brief is irrelevant. He makes much of the fact that Flynn entered into a plea agreement, which required him to admit under oath that he was guilty. Sullivan's argument seems to be "he was lying then or he's lying now so I need to nail him to the mast."
It's as if Judge Sullivan has never seen a plea agreement before. Plea agreements have long been abused. It's common for defendants facing the might of the federal government to lie about a lesser wrong to escape endless trials; personal bankruptcy; undeserved guilty verdicts; or, in Flynn's case, the government's threat to go after his son. Any agreement entered into under duress is invalid.
That same duress also applied to Flynn's counsel. Under pressure from the prosecution, Flynn's attorneys immediately abandoned their fiduciary duty to him. When they should have demanded that the government produce exculpatory documents, they instead encouraged Flynn, who knew nothing about the legal maze in which he found himself, to cop to a guilty plea.
Those are the obvious problems with the brief. Here are just two of many others:
Sullivan argues that the petition for writ of mandate is premature because he hasn't yet ruled on the motion to dismiss. However, because a motion to dismiss should be rubber-stamped except to protect the defendant, the judge has no right to delay the ruling. This petition is, therefore, timely.
As well as misleading the trial court about the Fokker case, Sullivan's attorneys also pretend Judge Sullivan can request third-party briefs because the civil rules of procedure say so. They must know that the criminal rules of procedure bar amicus briefs. Certainly, Sullivan knew that when he refused to allow such briefs during an earlier proceeding in the case.
(For more fatal flaws in the brief, check out Undercover Huber's analysis.)
The brief boils down to one argument: Judge Sullivan believes that Flynn's a bad guy, and Sullivan wants to keep the case alive (something he has no constitutional authority to do), presumably until Biden is elected and appoints a new attorney general. The lawyers who wrote this partisan nonsense should be embarrassed.